Citation Nr: 21064099 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 11-12 878 DATE: October 19, 2021 ORDER Entitlement to a separate 20 percent rating for dislocated semilunar cartilage of the right knee from February 29, 2016 is granted. Entitlement to a separate rating for dislocated or symptomatic removal of semilunar cartilage of the left knee is denied. Entitlement to a total disability rating based on individual unemployability as due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the Board finds that since February 29, 2016, he has manifested a right knee meniscal tear with frequent episodes of joint locking, pain and effusion. 2. A preponderance of the evidence is against finding that the Veteran has manifested dislocated or symptomatic removal of semilunar cartilage in his left knee. 3. The evidence of record does not indicate that the Veteran's service-connected disabilities, standing alone, are of such severity as to effectively preclude him from finding and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate rating for dislocated semilunar cartilage of the right knee have been met. 38 U.S.C §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258, 5259. 2. The criteria for a separate rating for dislocated or symptomatic removal of semilunar cartilage of the left knee have not met. 38 U.S.C §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258, 5259. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 1980 to May 1984, August 1984 to August 1988, and April 1989 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in October 2017 and December 2020 hearings, transcripts of which have been attached to the record. The Board previously remanded this matter to the AOJ for further development in January 2018, July 2019, and April 2021. Knee Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) 38 C.F.R. Part 4. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, the higher rating will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259) and instability or subluxation (DC 5257). The April 2021 Board decision assigned a 20 percent rating for each knee due to moderate instability from July 18, 2008, the beginning of the current period on appeal, as well as a 10 percent rating for each knee based on painful motion loss to a noncompensable degree. At the December 2020 Board hearing, the Veteran reported frequent episodes of joint locking and indicated he had seen imaging noting a meniscal condition. The April 2021 Board decision remanded the issue of entitlement to separate ratings for meniscal disorders and instructed the AOJ to obtain MRI imaging that was not in the claims file. The Board notes that DC 5259 is not applicable in this case, as it provides a 10 percent rating for "cartilage, semilunar, removal of, symptomatic." 38 C.F.R. § 4.71a. A review of the record indicates that the Veteran has not undergone removal of semilunar cartilage (meniscus) in either knee, also known as a meniscectomy. However, under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Id. The Board will therefore discuss whether a separate rating under DC 5258 is warranted for either knee. 1. Entitlement to a separate rating for a right knee meniscal disorder The Veteran was afforded a September 2008 VA knee examination in conjunction with his claim for an increased rating. He reported symptoms of bilateral knee pain with mild instability. He reported locking symptoms of the left knee but not the right. Concurrent imaging revealed mild bilateral patellofemoral arthritis but no meniscal abnormalities. A May 2009 spousal statement descried the Veteran as having excruciating leg pain and stiffness. In a November 2009 statement, the Veteran reported ongoing pain, instability and discomfort in his knees, as well as an inability to walk or stand for prolonged periods of time. An April 2011 statement again reiterated these complaints. January 2015 VA imaging revealed degeneration of the patella bilaterally, but no evident joint effusion or soft tissue irregularities. In July 2015, the Veteran reported symptoms of knee pain with occasional swelling. No effusion was present on examination. A February 2016 VA MRI revealed a small tear in the anterior junction of the lateral meniscus along the femoral surface as well as small joint effusion. The Veteran submitted an October 2017 private knee disability benefits questionnaire. The examiner provided a diagnosis of bilateral knee osteoarthritis and patellofemoral pain syndrome, manifesting as pain and stiffness. The Veteran reported occasional swelling and effusion after repetitive use, and the examiner noted a meniscal condition, recording "frequent episodes of joint pain after increased use." During an October 2017 Board hearing, the Veteran reported limited activity because of his knee pain, and stated he needed to take two to three days off from work every four to five months to rest his knees. The Veteran was afforded an additional knee examination in March 2018, during which he was diagnosed with patellofemoral pain syndrome, arthritis and chondromalacia. He reported stiffness in both knees with prolonged standing and sitting, pain and difficulty climbing stairs, as well as the feeling his knees were "giving out," all of which caused difficulty in performing his job as a postal carrier. The examiner noted a history of slight recurrent effusion, described as "occasional swelling and effusion noted with repetitive use of bilateral knees." The Veteran was afforded with another VA knee examination in January 2020. He reported flareups whenever it rained manifesting as increased pain, as well as difficulty using stairs. The examiner noted no history of a meniscal condition. During a December 2020 Board hearing, the Veteran reported symptoms of knee locking occurring prior to March 2018 and described his knees as "really painful every day." He indicated that using stairs particularly aggravated his knee pain. With regard to a meniscal condition, he stated he was never informed he had a torn meniscus, but that it "popped up" in his medical records. The Veteran also reported increased pain and stiffness after sitting or standing too long. March 2021 VA treatment records indicate the Veteran was issued new knee braces which provided pain relief. July 2021 VA treatment records note he reported throbbing pain in his knees bilaterally, but no joint locking. The Board observes that the terms dislocation and tear are used interchangeably when referring to knee cartilage disorders. A February 2016 right knee MRI revealed a slight tear in the Veteran's meniscus (semilunar cartilage) which was not observed on January 2015 imaging. As such, the Board finds that the Veteran manifested a semilunar cartilage dislocation from February 29, 2016, but that it is not factually ascertainable this dislocation occurred prior to the MRI. The prior lay statements did not describe frequent right knee locking episodes. However, the Board also notes that the criteria for a compensable rating under DC 5258 require frequent episodes of joint locking, pain and effusion. The October 2017 private DBQ noted occasional pain and effusion after repetitive use, while the Veteran reported episodes of pain and stiffness after extended walking or standing during a subsequent VA examination. He reiterated these statements and reported incidents of locking prior to 2018 at the most recent Board hearing. Finally, he recently reported "throbbing" knee pain to his VA treatment provider. The Veteran has consistently stated that his daily routine as a postal carrier includes multiple periods of extended sitting as well as the frequent walking, to include using stairs. In this case, the Board will resolve reasonable doubt in the favor of the Veteran and find that he has manifested a torn meniscus manifesting as frequent episodes of joint locking, pain and effusion in the right knee since February 29, 2016. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). In so finding, the Board notes that it is interpreting the "pain" associated with locking and effusion as distinct from that associated with flexion and extension during movement, warranting a separate rating as set forth by Lyles v. Shulkin, 29 Vet. App. 107 (2017). 2. Entitlement to a separate rating for a left knee meniscal disorder September 2008 VA imaging of the Veteran's knees did not reflect any meniscal injuries, and January 2015 imaging noted no acute dislocation or joint effusion, with unremarkable soft tissues. While a February 2016 MRI revealed a tear in the Veteran's right meniscus, his left knee menisci was characterized as "unremarkable." March 2016 imaging revealed bilateral osteoarthritis of the knees but no left knee cartilage disorders. In a 2017 disability benefits questionnaire, a private physician noted the Veteran manifested a meniscal condition but did not specify the affected knee and failed to note a meniscal disorder in the diagnosis section. A March 2018 VA examination noted bilateral knee pain and stiffness but failed to observe any meniscal disorders, only a progression of the Veteran's bilateral knee arthritis. Finally, a January 2020 VA examination also noted no meniscal disorders. After a review of the record, the Board finds that a preponderance of the evidence is against finding that the Veteran has manifested a left knee meniscal disorder during the appeal period. While the private examiner reported a history of meniscal condition, in the absence of any additional favorable evidence, the Board must assume he was referring to the Veteran's right knee meniscal tear, which was revealed by February 2016 imaging. All the imaging in the claims file is negative for a left knee meniscal disorder, and there is no indication of treatment for the same, to include a meniscectomy. As such, there is no reasonable doubt to resolve in the Veteran's favor, and a separate rating under DC 5258 or 5259 for a semilunar cartilage disorder of the left knee is not warranted. 38 C.F.R. § 4.3. 3. Entitlement to a TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Due to the common etiology of his knee disabilities, the Veteran has been eligible for schedular consideration of a TDIU since September 2, 2010. At the December 2020 Board hearing, the Veteran indicated that he was considering retiring from full time employment with the United States Postal Service, as his disabilities were interfering with his ability to work. The Veteran stated he was undecided as to whether he was going to put in paperwork for a regular or disability retirement. The Veteran and his representative were instructed to submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as any paperwork related to a disability retirement determination if applicable. The April 2021 Board remand instructed the AOJ to send the Veteran a letter with a VA Form 21-8940 application and advising him of the information and evidence necessary to award a TDIU. According to the claims file, the AOJ sent the Veteran an April 2021 subsequent development letter requesting he complete the attached unemployability application as well as a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefit. This correspondence was sent with the letter informing the Veteran of the favorable rating decision ordered by the Board in its April 2021 decision. To date, there has been no response from the Veteran. Based on the above, the Board finds that a TDIU is not warranted. For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes his or her case outside of the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board acknowledges that the Veteran's service-connected disabilities clearly create difficulty in performing his assigned tasks as a postal carrier, particularly his bilateral knee symptoms. He has credibly reported pain when walking up and down stairs, as well as occasional difficulty finishing his assigned route in an eight-hour workday. The record shows, however, that the Veteran has remained gainfully employed throughout the appeal period and has experienced less difficulty since switching to a "mounted" route. As referenced above, the Veteran was asked by both the undersigned Veterans Law Judge and the AOJ to provide employment information, to include whether he had retired from the postal service and, if applicable, the manner in which he retired. The US Court of Appeals for Veterans Claims has noted that the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). To date, the Veteran has not submitted a complete TDIU application or informed VA of his current employment status, both of which would have assisted the Board in arriving at a conclusion. The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to TDIU. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In this case, the Board cannot determine with any reasonable degree of doubt any specific time periods where the TDIU criteria have been met in order to assign the potential effective date of an award. As such, based on the current evidence of record, the claim for entitlement to a TDIU must be denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.